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COMMONWEALTH EX REL. CIVILL ET AL. v. JONES (04/28/70)

decided: April 28, 1970.

COMMONWEALTH EX REL. CIVILL ET AL., APPELLANTS,
v.
JONES



Appeal from order of Superior Court, No. 345, April T., 1969, in cases of Commonwealth ex rel. Leonard A. Civill v. Ernest C. Jones, Commonwealth ex rel. Joseph Bonomo v. Same, Commonwealth v. Leonard A. Civill, and Same v. Joseph Bonomo, quashing appeals from orders of Court of Common Pleas of Allegheny County, Oct. T., 1968, Nos. 1797, 1796, 1793 and 1795.

COUNSEL

Allen N. Brunwasser, for appellants.

Frederick A. Boehm, Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Mr. Chief Justice Bell and Mr. Justice Roberts concur in the result on the basis of Justice Roberts' dissenting opinion in Commonwealth ex rel. Magaziner v. Sheriff of Philadelphia County, Author: Per Curiam

[ 438 Pa. Page 313]

This case has its origin in the filing, on June 13, 1968, of a criminal complaint by a police officer of the City of Pittsburgh with the then Chief Police Magistrate of the City, Ernest C. Jones, charging the two defendants, appellants here, with bribery, corrupt solicitation, attempt to suborn perjury and conspiracy. Although a preliminary arraignment was promptly scheduled for June 19, 1968, no arraignment has yet been held.

On August 9, 1968, on petition of appellants, Judge John Brosky of the Court of Common Pleas of Allegheny County entered an order granting a writ of certiorari to the magistrate's court and directing that a judge of the Court of Common Pleas be appointed to sit as a committing magistrate in the Court of Oyer and Terminer to hear evidence in the matter and make judgment thereon. After signing said order, Judge Brosky referred the case to the Honorable Henry Ellenbogen, President Judge, for the purpose of appointing a judge to sit as committing magistrate.

Various legal maneuvers followed. In May, 1969, the City of Pittsburgh (appellee), in order, as it states in its brief, to expedite the arraignment of appellants under the procedures outlined in Judge Brosky's order, caused the police officer who had filed the original complaint with Magistrate Jones to petition the court for leave to withdraw the complaint and for the appointment of a judge of the Court of Common Pleas to receive a new criminal information. A rule to show cause was granted.

Judge Ellenbogen, after hearing, entered an order on July 28, 1969, making absolute the rule and implementing

[ 438 Pa. Page 314]

Judge Brosky's order. Since this is the order from which the present appeal stems, we reproduce it in full in the margin.*fn1 The appellants promptly appealed to the Superior Court, which on September 18, 1969, granted a motion to quash. Appellants thereupon took a direct appeal from the Superior Court to this Court without seeking an order allowing the same. Appellee filed a motion to quash this appeal by reason of the noncompliance with the appeal procedure established by the Act of August 14, 1963, P. L. 819, amending the Act of June 24, 1895, P. L. 212, 17 P.S. ยง 190,

[ 438 Pa. Page 315]

    and also because the issues raised had been mooted by the denial of a writ of certiorari by the U. S. Supreme Court on prior appeal. To this motion appellants have filed preliminary objections and an answer: Our rules do not provide for preliminary objections to a motion to quash, and the same will be stricken. Appellants' answer denied that the questions raised on appeal had been mooted and asserted that appealing without special allocatur was proper under the circumstances of the case.*fn2 We disagree and will grant the motion to quash.

There are unusually persuasive reasons in the present case for requiring a strict compliance with statutory steps. In the twenty-one months since the case was commenced it has, in one respect or another, been before at least two judges of the Court of Common Pleas of Allegheny County, before the Superior Court twice on appeal, before this Court twice on appeal, and before the Supreme Court of the United States once (on the ...


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